Tasmania proposes clean up of environmental law

On 5 September 2019, the Tasmanian Government released the draft Environmental Legislation (Miscellaneous Amendments) Bill 2019 for consultation. Submissions can made until close of business on 4 October 2019.

Described as "minor amendments" to the Environmental Management and Pollution Control Act 1994 (Tas) (EMPC Act) and related legislation, the draft Bill proposes some significant changes, including:

• imposing tougher standards for "clean fill";
• allowing for the public release of environmental monitoring information from facilities which report that information to the EPA, without the facility operator's consent;
• introducing a new, more serious offence for carrying out Level 2 Activities unlawfully;
• relaxing some of the requirements for some cases of one-off waste disposal and biosolids disposal; and
• creating new emergency enforcement powers.

We have outlined these changes below.

Tougher standards for "clean fill"

Currently "clean fill" is defined under the EMPC Act as "fill, including soil, rock, concrete, bituminised pavement and similar non-putrescible and non-water-soluble material, that is not contaminated by other waste and that does not contain contaminant levels exceeding limits set by the Director [of the EPA]."

According to the Explanatory Paper for the draft Bill, the Government believes this definition is too broad, so that it allows the unsafe disposal of material which is not "clean" and allows materials which could otherwise be recycled to be disposed to landfill.

The draft Bill proposes to split the definition of "clean fill" into two -

• clean fill type 1: natural materials, such as soil, rock, crushed rock, gravel, clay or sand, which are in a raw, unaltered form and that have been excavated from an area of land; and
• clean fill type 2: a mixture containing any one or more of the following:
  • bricks, masonry or paving blocks;
  • concrete or mortar;
  • bituminised or rubble pavement.

It also proposes that the Director of the Environment Protection Authority (EPA) can specify the maximum levels of chemical contaminants or maximum proportions of other inert materials (eg. wood, plastics and metals), and the maximum dimensions for pieces of those materials, which clean fil type 2 can contain. The Explanatory Paper indicates that stakeholders will be consulted when these parameters are developed.

This is likely to require additional testing of fill material before it is used on construction sites, and tighten the market for natural clean fill, but it may also increase the rate of recycling of construction and demolition waste, which is a significant contributor to landfill volumes around Australia.

Environmental monitoring information to be made public

While trade secrets will continue to be protected under the EMPC Act, The draft Bill proposes to give the EPA Director the power to make public a wide range of monitoring information which has been provided to the EPA under the Act, public without the consent of the person who provided that information.

The kinds of information which can be released include, for example:

• the results of any emission or deposit tests or measurement results;
• environmental condition reports for the site of a specified activity or land in its proximity;
• any interpretation, or analysis, of such results or reports; and
• any photographs, visual recordings, audio recordings or audio-visual recordings.

It's intended to bring Tasmanian law into line with "modern standards of information availability" and disclosure standards in various other Australian jurisdictions.

More serious offences for Level 2 Activities

Level 2 Activities are activities which have a high potential for emitting pollutants or causing environmental harm and are prescribed in Schedule 2 of the EMPC Act. Examples include manufacturing and mineral processing, waste treatment and disposal, food production and animal and plant product processing, extractive activities, materials handling, fuel burning, pre-mix bitumen plants, and wind energy facilities.

Development proposals for Level 2 Activities are referred by a local council to the EPA for environmental impact assessment. Generally, the EPA's conditions are imposed as part of the land use planning permit granted by the council under the Land Use Planning and Approvals Act 1993 (Tas) (LUPA Act).

The Explanatory Paper states that the penalty for carrying out Level 2 Activities without a LUPA Act planning permit is inadequate, and councils often lack the technical and financial capacity to undertake prosecutions for offences relating to Level 2 Activities.

So the draft Bill proposes a new offence in the EMPC Act for conducting a Level 2 Activity without a land use planning permit under the LUPA Act, with harsher penalties than the current offence for similar actions.

Changes to some Level 2 Activities

The draft Bill also proposes to relax some of the prescriptions for Level 2 Activities. For example:

• Waste depots: The Government is of the view that certain once-off and temporary activities do not warrant assessment and regulation as a Level 2 Activity, so the draft Bill proposes to allow exemptions for some waste disposal activities exempt activities via new regulations.
• Land application of Class 2 or Class 3 Biosolids: The Explanatory Paper indicates that the Government has advised that inclusion of this resource recovery activity as a Level 2 Activity is a major barrier to the efficient disposal of accumulated sludge from the State’s wastewater treatment plants, as much of this material can be disposed of on land, if appropriate regulatory controls are in place. Therefore, it is proposed that this activity be removed from Schedule 2 of the EMPC Act and regulated instead through Approved Management Method.

New emergency powers

The draft Bill would give authorised officers under EMPC Act the power to take, or direct another person to take, emergency action if of the opinion that:

• serious or material environmental harm (other than harm permitted by or under the EMPC Act) has been or is likely to be caused; and
• the circumstances are such that action (emergency action) is required to be taken without delay in order to prevent or mitigate the serious or material environmental harm.

Have your say

Submissions can be made via post or email in accordance with the details on the Department of Primary Industries, Parks, Water and Environment's website by close of business Friday, 4 October 2019.

If you would like any assistance in drafting a submission or are wanting to understand how this draft Bill will impact your organisation please contact us.